Delhi District Court
Musumat Jafri vs The Cutodian Of Evacuee Properties on 4 May, 2026
CS SCJ 653/2022 Musumat Jafri v. Custodian of
Evacuee Properties & Ors
IN THE COURT OF SH. MILAN GOEL: CIVIL JUDGE-08
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. : 653/2022
CNR NO : DLCT030011212022
IN THE MATTER OF:-
MST. JAFRI (DECEASED)
THROUGH LRS.
1. MUNFAT ALI (since deceased)
Through his LRs.
(i). BAIRAM KHAN
R/O H.NO.103, GOSPUR,
AMINAGAR SARAI (RURAL)
BAGHPAT, U.P.-250606
(ii). ABDUL JABBAR
R/O VILLAGE GOSPUR, AMINAGAR SARAI
(RURAL) BAGHPAT, U.P.-250606
(iii). IMRANA
W/O NAJAMUDDIN
D/O MUNFAIT ALI
R/O 35, JHALAWA, GHAZIABAD PATLA,
U.P.-201204
2. BANDAY HASSAN
R/O VILLAGE GAUSPUR,
TESHIL BAGPAT,
DISTT. MEERUT, U.P. PRESENTLY RESIDING AT
VILLAGE BAKHTAWARPUR, DELHI
...PLAINTIFFS
Digitally
signed by
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VERSUS
1. THE CUSTODIAN OF EVACUEE PROPERTIES
JAISELMAR HOUSE,
NEW DELHI
2. LT. GOVERNOR OF DELHI
LT. GOVERNOR HOUSE, RAJPUR ROAD,
CIVIL LINES, DELHI
3. GAON SABHA VILLAGE BAKHTAWARPUR,
UNION TERRITORY OF DELHI, DELHI
4. VILLAGE PANCHAYAT
VILLAGE BAKHTAWARPUR, DELHI
5. UNION OF INDIA
THROUGH UNDER SECRETARY,
DELHI ADMINISTRATION, DELHI.
6. SHRI KASHI RAM
S/O SHRI RAMA
CASTE BRAHMIN,
R/O VILLAGE BAKHTAWARPUR DELHI
7. SHRI BALWANT SINGH (DECEASED)
S/O SHRI SHIVLAL JAT,
R/O TAJPUR KALAN, DELHI
REPRESENTED BY
(i). SHRI TEHRI @ KEHRI
S/O SHRI BALWANT SINGH
(ii). SHRI RATTAN SINGH
S/O SHRI BALWANT SINGH
(iii). SHRI MAHADEV @ MAHINDER
S/O SHRI BALWANT SINGH
Digitally
signed by
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(iv). SHRI DAYA NAND @ DAVINDER
S/O SHRI BALWANT SINGH
(v). SHRI DHAJA RAM
S/O SHRI BALWANT SINGH
ALL R/O VILLAGE BAKHTARWARPUR, DELHI
8. SHRI MUNNI LAL
S/O SHRI BALWANT SINGH
CASTE CHAUHAN
R/O VILLAGE BAKHTAWARPUR,
DELHI
9. SHRI FAKIRA
S/O SHRI KALE
CASTE CHAUHAN (SINCE DECEASED)
REPRESENTED BY
(i). SHRI RAM KUMAR
S/O SHRI FAKIRA
(EARLIER MINOR REPRESENTED BY
HIS MOTHER SMT. SUMERI W/O SHRI FAKIRA)
(ii). SMT. SUMERI
W/O SHRI FAKIRA
(iii). SHRI PREM RAJ
S/O SHRI FAKIRA
(iv). MISS ASHWATI
D/O SHRI FAKIRA
ALL R/O VILLAGE BAKHTARWARPUR, DELHI
10. SHRI LACHMAN (SINCE DECEASED)
S/O KALE
Digitally
signed by
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CASTE BRAHMIN
REPRESENTED BY
(i). MISS KHAZANI
D/O SHRI LACHMAN
(ii). MISS MANBHAWATI
D/O SHRI LACHMAN
(iii). SHRI BIRMA
S/O SHRI LACHMAN
(iv). SATTO
D/O SHRI LACHMAN
ALL R/O VILLAGE BAKHTARWARPUR, DELHI
11. SHRI BHARTU
S/O SHRI KALE
CASTE BRAHMIN
R/O VILLAGE BAKHTAWARPUR, DELHI
12. SHRI KHUBI
S/O SHRI NAYADAR
R/O VILLAGE BAKHTAWARPUR, DELHI.
13. SHRI MITHAN
S/O SHRI JHUTAR
REPRESENTED BY
(i). SHRI PRITHI
S/O SHRI MITHAN
(ii). SHRI JASWANT
S/O SHRI MITHAN
(iii). SHRI SHER SINGH
S/O SHRI MITHAN
Digitally
signed by
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(iv). SHRI CHET RAM @ JIT RAM
ALL R/O VILLAGE BAKHTARWARPUR, DELHI
14. SHRI SHIV DAYAL
S/O SHRI CHANDER BHAN
CASTE MAHAJAN
R/O VILLAGE BAKHTAWARPUR,
DELHI
15. SHRI DAYA KISHAN
S/O SHRI CHHOTU RAM
R/O VILLAGE BAKHTAWARPUR,
DELHI
16. SHRI PREM LAL
S/O SHRI CHHOTU RAM
R/O VILLAGE BAKHTAWARPUR,
DELHI
17. SHRI BHAGWAN
S/O SHRI CHHOTU RAM
R/O VILLAGE BAKHTAWARPUR,
DELHI
18. SHRI INCHARAM
19. SHRI OM PRAKASH
20. SHRI ISHWAR CHAND
ALL SONS OF SHRI CHANDER BHAN
21. SHRI KRISHAN CHAND (SINCE DECEASED)
S/O SHRI CHANDER BHAN
REPRESENTED BY:
(i). SMT. LEELA
Digitally
signed by
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W/O SHRI KRISHAN CHAND
(ii). SHRI MANOJ KUMAR
S/O SHRI CHANDER BHAN
(iii). SHRI ANIL KUMAR
S/O SHRI CHANDER BHAN
(iv). MS. SEEMA
D/O SHRI CHANDER BHAN
ALL R/O VILLAGE BAKHTAWARPUR, DELHI
22. SHRI SURESH CHAND
S/O SHRI CHANDER BHAN
R/O VILLAGE BAKHTAWARPUR, DELHI
23. SHRI BHIRASPAT DEV
S/O SHRI SOHAN SINGH
24. SHRI OM PRAKASH
S/O SHRI SOHAN SINGH
25. SHRI PRAHLAD SINGH
S/O SHRI SOHAN SINGH
26. SHRI ARJUN DEV
S/O SHRI SOHAN SINGH
ALL R/O VILLAGE ΒΑΚΗTAWARPUR,
DELHI
...DEFENDENTS
Date of Institution : 01.05.1969
Date of Judgment : 04.05.2026
Digitally
signed by
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JUDGEMENT
SUIT FOR DECLARATION AND RECOVERY OF POSSESSION
1. By way of the present judgment, this Court proceeds to adjudicate the
civil suit instituted by the plaintiff seeking a decree of declaration along
with consequential relief of recovery of possession in respect of certain
agricultural lands situated in Village Bakhtawarpur, Delhi.
PLEADINGS AS PER THE PLAINT
2. The plaintiff approached this Court asserting that she is the daughter and
the sole surviving legal heir of one Sh. Allahadiya and, on that basis,
claims entitlement to inherit his alleged share in the suit land. The present
suit was instituted in the year 1969 and, owing to the complexity of the
issues involved, the multiplicity of parties and the nature of rival claims
raised in respect of different portions of the land, the proceedings
remained pending for several decades. The matter has now reached the
stage of final adjudication and is being decided by this Court in the year
2026.
3. The principal relief sought by the plaintiff is a declaration to the effect
that she be recognised as the exclusive owner of the land falling in
Khatauni 'A', which according to the plaintiff was allotted to the share
of Sh. Allahadiya pursuant to a partition scheme approved by the
Competent Officer vide order dated 07.05.1966. Consequentially, the
plaintiff has also sought recovery of possession of the said land from
several defendants who, as per the plaintiff, are presently occupying
different portions of the property as allottees, licensees or tenants under
the Custodian of Evacuee Property/Defendant No. 1.
Digitally
signed by
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4. It is the case of the plaintiff that once the share of Sh. Allahadiya is
recognised as belonging to a non-evacuee, the possession of such
defendants becomes wholly unauthorized and they are liable to hand over
vacant possession to the plaintiff.
5. The suit has been contested by a large number of defendants, including
the Custodian of Evacuee Property, the Delhi Administration, the Gaon
Sabha, as well as several private individuals who claim independent
rights in different khasra numbers forming part of the suit property. The
defences raised by the defendants traverse the entire claim of the plaintiff
and include objections relating to the title asserted by the plaintiff, the
alleged succession to the estate of Sh. Allahadiya, vesting of the land
under the provisions of the Delhi Land Reforms Act, acquisition of
bhumidari rights by certain defendants, pleas of adverse possession,
claims arising out of auction purchases, and objections relating to
non-joinder of necessary parties, valuation and maintainability of the suit.
6. As per the case set up in the plaint, the plaintiff asserts that one Sh.
Allahadiya was the owner of a one-fourth share (hereinafter referred to
as "Suit Property") in land measuring 749 bighas and 17 biswas
comprised in Khatauni Nos. 1 to 32, including Khasra No. 8/1/1 situated
in Village Bakhtawarpur, NCT of Delhi. It is alleged that the remaining
three-fourths share vested in the Custodian of Evacuee Property on
account of the same having fallen within the category of evacuee
property, whereas the said Sh. Allahadiya was a non-evacuee and
therefore his share in the land never vested with the custodian. According
to the plaintiff, Sh. Allahadiya continued to retain ownership over his
one-fourth share in the said property.
Digitally
signed by
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7. The plaintiff further avers that Sh. Allahadiya expired approximately
fifteen years prior to the institution of the present suit, and that she,
namely Musamat Jafri, is his sole surviving daughter and legal heir. On
this premise, it is asserted that she alone is entitled to succeed to the
estate of Sh. Allahadiya, including the one-fourth share in the suit
property stated to have devolved upon her.
8. It has also been pleaded that certain proceedings were conducted before
the Competent Officer under the relevant evacuee property laws,
culminating in an order dated 07.05.1966. In the said proceedings, it is
alleged that the Competent Officer observed that Sh. Allahadiya was the
owner of one-fourth share in the land. However, the plaintiff was advised
to approach the appropriate forum for determination of her rights of
succession. The plaintiff has placed reliance upon the said order and the
partition scheme prepared pursuant thereto in order to contend that the
lands falling in Khatauni 'A' were allotted to the share of Sh. Allahadiya.
9. According to the plaintiff, despite the said position having been clarified
in the proceedings before the Competent Officer, several defendants
continued to assert possession over different portions of the land. It is the
allegation of the plaintiff that these defendants claim to be occupying the
land as allottees, licensees or tenants under the Custodian of Evacuee
Property, even though the share of Sh. Allahadiya, being that of a
non-evacuee, never vested in the custodian. On this premise, the plaintiff
contends that the defendants have no lawful right, title or interest in the
property falling in the share of Sh. Allahadiya.
10. The plaintiff further asserts that in order to assert her rights, a legal notice
dated 13.06.1967 was served upon the defendants calling upon them to
Digitally
signed by
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acknowledge the plaintiff's claim and deliver possession of the land.
However, as per the plaintiff, the defendants failed to comply with the
said notice and continued to remain in possession of the property.
11. In these circumstances, the plaintiff instituted the present suit seeking
declaration of ownership in respect of the lands falling in Khatauni 'A'
and for recovery of possession from the defendants.
12. The details of the land (Suit property) involved in the present case are as
follows:-
Khasra No. Bighas Biswas
8/3 4 16
4 4 16
5 1 4
6 - 17
7 4 16
8 4 16
9 4 16
2/2 2 8
Digitally
signed by
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9/26 - 4
21/7 4 16
8 1 14
12 1 3
13 4 10
17 4 16
14 4 16
18 4 16
19 4 16
20 - 19
21 4 5
22 4 16
25/1 4 4
2 4 1
Digitally
signed by
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3 4 3
4 4 4
5 4 4
6 4 16
7 4 16
8/1 3 19
9 4 16
10 4 16
33/18 4 13
23 4 16
47/15 3 16
18/1 1 5
19 4 16
34/1/1 - 8
Digitally
signed by
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87/1 4 16
3 4 16
5 4 16
2 4 16
120/83 - 5
19/1 4 16
2 4 5
47/25/2 1 -
120/231 - 11
8/7/1 2 8
9/46 - 4
12/16/2 1 8
36/7/1/1 3 12
120/35 1 7
Digitally
signed by
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WRITTEN STATEMENT FILED BY THE DEFENDANTS
13. In the written statement filed on behalf of Defendant nos. 2, 3 and 5, the
averments made in the plaint were generally denied, save and except
those facts which are matters of record, particularly the orders passed by
the competent authority. The said defendants have contested the present
suit primarily on the ground of the doctrine of escheat. It has been
contended that the suit property was waste land at the time of
commencement of the Delhi Land Reforms Act and, in the absence of
any lawful heir to succeed to the estate of the recorded owner, the said
land stood vested in the State. It is further stated that in such
circumstances the property is deemed to have vested in defendant no. 3
and the plaintiff has no subsisting right, title or interest therein.
14. Defendant no. 1 has also filed a written statement contesting the claim of
the plaintiff. It has been specifically pleaded that the owner of the suit
property was one Sh. Allah Din, son of Khani, and not Sh. Allahadiya as
alleged by the plaintiff. On this premise, the claim of the plaintiff to
succeed to the estate of Sh. Allahadiya has been disputed.
15. Defendant no. 6 has similarly filed a written statement denying the
contents of the plaint in toto. It has been specifically denied that Sh.
Allahadiya was the owner of the suit property. The said defendant has
also disputed the relationship claimed by the plaintiff and has denied that
the plaintiff is the daughter or sole legal heir of Sh. Allahadiya. On these
grounds, it has been contended that the present suit has been instituted
without any cause of action and is liable to be dismissed.
Digitally
signed by
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16. Defendant no. 13 has also contested the suit by filing a written statement
wherein the contents of the plaint have been denied for want of
knowledge. It has been stated that defendant no. 13 is the owner and is in
possession of land comprising khasra nos. 8/4 and 8/5 measuring 4 bighas
and 16 biswas, which were allotted to him during the consolidation of
holdings in Village Bakhtawarpur. It is further pleaded that the said land
was allotted to the defendant in exchange for the land which was already
in his cultivatory possession and, as such, the defendant has become the
Bhumidar of the said land and its rightful owner.
17. Defendant no. 7 has also filed a written statement contesting the suit on
several grounds. It has been stated that the suit has been filed without any
cause of action and is further bad for misjoinder of parties. The said
defendant has asserted that he is in possession of khasra nos. 21/17 and
21/24 and has acquired the status of Bhumidar in respect thereof. It is
further contended that he is also in possession of land bearing khasra no.
8/2/2 and has become its Bhumidar by virtue of long and continuous
possession which has been open and hostile to the knowledge of all
concerned for several years. The defendant has also denied the assertion
of the plaintiff regarding the death of Sh. Allahadiya and has contended
that neither the date nor the place of his alleged death has been disclosed
in the plaint.
18. Defendant no. 12 has also filed a written statement denying the contents
of the plaint except those which are matters of record. It has been asserted
that defendant no. 12 is the owner and in occupation of land bearing
khasra no. 8/3 measuring 4 bighas and 16 biswas. According to the said
defendant, the land was allotted to him in exchange for land which was
Digitally
signed by
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already in his cultivatory possession during the consolidation proceedings
and, as such, he has become the Bhumidar and lawful owner thereof. It
has therefore been contended that the plaintiff has no right, title or interest
in the said property.
19. Defendant nos. 14, 18, 19, 20, 21 and 22 have also filed their written
statement wherein the contents of the plaint have been denied. It has been
specifically contended that Sh. Allahadiya had six sons, namely Sh.
Nasru, Sh. Jhangu, Sh. Tota, Sh. Nasir, Sh. Abrahim and Sh. Babu, along
with two daughters, all of whom are stated to have migrated to Pakistan.
It is further stated that Sh. Allahadiya did not have any daughter by the
name of Musamat Jafri. On this basis, the claim of the plaintiff to be the
daughter and legal heir of Sh. Allahadiya has been categorically denied
and it has been contended that the plaintiff has no right, title or interest in
the suit property. It has also been pleaded that even assuming the plaintiff
to be the daughter of Sh. Allahadiya, the suit would still be bad for
non-joinder of necessary parties as the other alleged heirs have not been
impleaded in the present matter. Additionally, it has been contended that
the suit has not been properly valued for the purposes of court fee and
jurisdiction. These defendants have further stated that land measuring 1
bigha and 7 biswas along with a superstructure comprising one kacha
kotha was attached in execution of a money decree passed against Sh.
Allahadiya. The said property was subsequently auctioned by a
competent court in Miscellaneous Execution No. 289 of 1948 and, after
completion of the requisite legal formalities, possession thereof was
delivered to the auction purchaser pursuant to orders of the court. It has
further been stated that in 1952 consolidation of holdings took place in
Village Bakhtawarpur and Sh. Allahadiya himself was a member of the
Digitally
signed by
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consolidation committee. Thereafter, mutation of the said property was
effected on 24.03.1953 in favour of Sh. Chander Bhan and it is alleged
that Sh. Allahadiya himself delivered possession of the property to the
Defendants.
20. Defendant no. 9 has also filed a written statement wherein the contents
of the plaint have been denied. However, it has been specifically
contended that the defendant was not in possession of the land as a tenant
under the Custodian of Evacuee Property but was in possession as a
non-occupancy tenant even prior to the year 1947. It has been further
contended that in view of Section 192 of the Delhi Land Reforms Act, the
defendant is entitled to be declared as a Bhumidar in respect of the suit
land.
21. Defendant nos. 15, 16 and 17 also contested the suit by filing their
Written Statement wherein they denied the contents of the plaint. It has
been stated that they had purchased land measuring 14 biswas out of
khasra no. 120/35 from Sh. Chander Bhan vide a registered sale deed
dated 29.03.1963. It is further pleaded that Sh. Chander Bhan himself had
acquired the said land in a court auction held in execution of a decree
passed against Sh. Allahadiya alias Allah Din, son of Sh. Khawani.
22. The legal representatives of defendant no. 9 also filed a written
statement stating that the original defendant no. 9 had expired on
30.05.1972. However, since a written statement had already been filed by
the original defendant no. 9 during his lifetime, the contents thereof were
adopted and were not repeated in detail.
Digitally
signed by
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23. Defendant nos. 10 and 11 have also filed their written statement denying
the averments made in the plaint except those which are matters of
record. It has been stated that they are holding portions of the suit
property as Bhumidars and that their rights were declared by the Court of
the Revenue Assistant, Sh. S. L. Malhotra, vide order dated 19.12.1967
passed in Case No. 5/RA, Bakhtawarpur.
REPLICATION FILED BY THE PLAINTIFF
24. The plaintiff, in the replication filed in response to the written statements
submitted by the defendants, has denied the averments and contentions
raised therein, except those facts which are matters of record. The
plaintiff has reiterated and reaffirmed the contents of the plaint and has
asserted that the defences raised by the defendants are false, incorrect and
devoid of merit. It has further been stated that the objections taken by the
defendants are untenable in law and do not affect the claim of the plaintiff
as set out in the plaint.
ISSUES FRAMED
25. Upon completion of the pleadings and in view of the rival assertions
made by the parties, this Court, vide order dated 04.01.1978, framed the
following issues for determination on the basis of the pleadings of the
parties and the controversies arising therefrom:
25.1. Whether the plaintiff is the daughter of Sh. Allahadia and she
is the only legal heir of Sh. Allahadia?
25.2. Whether Sh. Allahadiya died issue-less and has not left any
legal heir to inherit/succeed to his estate and the land in suit
Digitally
signed by
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has vested in defendant no.2 on account of escheat as alleged in
para 5 of the written statement?
25.3. Whether legal and valid notice u/s 80 CPC has been served
upon the defendants?
25.4. Whether the land in suit was vested in Gaon Sabha under Delhi
Land Reforms Act, 1954 and if so whether such land stands
vested in Gaon Sabha of village Bakhtawarpur?
25.5. Whether defendants no.6 and 7 have acquired title of part of
the suit property by adverse possession?
25.6. Whether defendant no.9 was a non-occupancy tenant in the
suit land under Sh. Allahadiya prior to 1947 and has been in
cultivatory possession of the same? If so, to what effect?
25.7. Whether the civil court has jurisdiction to try the suit?
25.8. Whether the defendant no.12 is the allottee of Khasra No. 8/3
of the suit land? If so, whether he has been in cultivatory
possession of the suit land since 1953-54? If so, to what effect?
25.9. Whether defendant no.13 is the allottee of Khasra Nos. 8/4 and
8/5 of the suit land and has been in cultivatory possession of the
same since 1953-54? If so, to what effect?
25.10. Whether defendants no.14 and 18 to 22 are the lawful
purchasers of part of the suit land alleged to have been
purchased by them under a public auction held by the Court in
the year 1949 and are in possession of the land since then? If so,
to what effect?
Digitally
signed by
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25.11. Whether defendants no.15, 16 and 17 are lawful purchasers of
land out of Khasra No. 120/35 from Sh. Chander Bhan, S/o Sh.
Hari Singh, who is alleged to have purchased the same in a
court auction?
25.12. Whether defendants no.2 and 5 cannot be sued in the present
form?
25.13. Whether the plaint is vague and is liable to be rejected in view
of paras no.1 to 11 of the written statement of the defendants?
25.14. Whether the suit is bad for mis-joinder and non-joinder of
parties and causes of action?
25.15. Whether the suit of the plaintiff against the defendants is not
maintainable?
25.16. Whether the suit is not properly valued for the purposes of
court fees and jurisdiction?
25.17. Whether the plaint is liable to be amended in view of the
written statement of defendant no.9?
25.18. Relief.
26. Subsequently, the aforesaid issues were reiterated, renumbered and
affirmed by this Court vide order dated 24.09.2024. At that stage, upon
consideration of the nature of the objections raised by the defendants,
Issue Nos. 12, 13, 15, 16 and 17 were directed to be treated and decided
as preliminary issues.
Digitally
signed by
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27. At this stage, it would also be pertinent to observe that out of the total
defendants involved in the present suit, only defendant no. 1, defendant
no. 3, the legal representatives of defendant no. 7B and the legal
representatives of defendant no. 9A have continued to contest the
proceedings. The remaining defendants, despite service, failed to appear
and contest the matter and were accordingly proceeded against ex parte
by the orders of this Court passed on different dates during the course of
the proceedings.
28. For the sake of clarity and completeness of the record, the details of such
defendants who were proceeded ex parte on, along with the respective
dates on which the orders to that effect were passed, are reflected in the
table reproduced hereinbelow:
Defendant No. Date on which proceeded Ex-parte
1. 17.09.1969; 26.09.1977
2. 11.05.1971; 26.09.1977
3. 11.05.1971; 26.09.1977
4. 17.09.1969; 26.09.1977
5. 11.05.1971; 26.09.1977
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6.
7. 18.02.1971
8. 18.02.1971; 26.09.1977
9.
10. 18.02.1971; 07.03.1977
11. 09.09.1971
12. 20.10.1970
13. 20.10.1970
14. 08.05.1981
15. 20.10.1970
16. 20.10.1970
17. 20.10.1970
18. 08.05.1981
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19. 08.05.1981
20. 08.05.1981
21. 08.05.1981
22. 08.05.1981
23. 20.10.1970; 26.09.1977; 08.05.1981
24. 20.10.1970; 26.09.1977; 08.05.1981
25. 26.09.1977; 08.05.1981
26. 20.10.1970; 26.09.1977; 08.05.1981
PLAINTIFF EVIDENCE
29. In order to substantiate the case set up in the plaint, the plaintiff examined
four witnesses. These witnesses were: (i) Sh. Munfait Ali, the legal
representative of the deceased plaintiff; (ii) Sh. Abdul Hassan, who was
examined as a translator; (iii) Sh. Layak Ram, a summoned witness from
the Office of the Custodian, Land & Building Department, Government
of India; and (iv) Sh. Akhtar.
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30. Sh. Munfait Ali, the legal representative of the plaintiff, entered the
witness box as PW1 and tendered his evidence by way of an affidavit
which was exhibited as Ex. PW1/A. In his evidence affidavit, the witness
reiterated the averments made in the plaint and sought to support the
claim of the plaintiff with respect to her alleged rights in the suit property.
In support of his testimony, PW1 relied upon the following documents:
Sr. No. Description of Documents Exhibits/Mark
1. Copy of order dated 07.05.1966 Mark A
passed by Sh. K.L. Wason,
Competent Officer in case no.
2579 and 1475 (Rural)
2 Copy of scheme of partition (The Mark B
same is in urdu language)
3. Original postal receipt no. 157 PW1/3
qua legal notice dated 13.06.1967
4. Postal receipt no. 153, 154, 155 PW1/4
and 156 qua legal notice dated
13.06.1967
5. Office copy of legal notice dated PW1/5
13.06.1967
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31. In his evidence affidavit, Sh. Munfait Ali stated that he is the son of the
deceased plaintiff and sought to establish the relationship of the plaintiff
with Sh. Allahadiya. He deposed that the plaintiff, Musamat Jafri, was the
only child and daughter born out of the wedlock of Sh. Allahadin and
Smt. Jarifan. According to the witness, Sh. Allahadin/Allahadiya was his
maternal grandfather and, there being no other child except the plaintiff,
he (Sh. Allahadiya) himself had performed and supervised the marriage
ceremonies of the witness in accordance with customary rituals.
32. The witness further deposed that he is a permanent resident of Village
Gauspur. He stated that during the lifetime of his maternal grandfather, he
had occasion to visit the house of Sh. Allahadin which is situated in
Village Bakhtawarpur. In order to describe the location of the said house,
the witness referred to certain surrounding landmarks in the village. He
stated that the Haveli of Sh. Nabbu Chaudhary was situated towards the
eastern side of the Chaupal of Village Bakhtawarpur and that the houses
of Sh. Mauley Luhar, Sh. Sibli Jaat and Sh. Udai Nath Jogi were located
nearby. The witness also referred to the existence of a mosque and a
graveyard which, according to him, belonged to or were associated with
his maternal grandfather.
33. The witness further stated that during the communal disturbances which
took place in the year 1947, Sh. Allahadin temporarily shifted to Village
Gauspur and stayed there for about a year before returning. According to
the witness, although several other family members of Sh. Allahadin left
Village Bakhtawarpur during the disturbances of 1947 and migrated to
Pakistan, his maternal grandfather, namely Sh. Allahadin, continued to
remain in India for the greater part of the time thereafter.
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34. In his evidence affidavit, Sh. Munfait Ali further deposed that during a
routine visit to his own village in 1954, Sh. Allahadin suffered an injury,
the information of which was conveyed to him by Sh. Akhtar (PW-4), an
employee in Village Bakhtawarpur at the relevant time though resident of
village Gauspur only. Following the incident, the witness stated that he
brought Sh. Allahadin to Village Gauspur, but despite medical care, Sh.
Allahadin did not recover from the injury and passed away within
approximately 25 to 30 days in village Gauspur only.
35. The witness reiterated the plaintiff's claims as stated in the plaint,
asserting that Sh. Allahadin was the owner of a 1/4th share of the suit
property. He also alleged that Defendant No. 1 had filed a false claim
before the Competent Officer, asserting that Sh. Allahadin had migrated
to Pakistan, thereby seeking to vest the suit property with the Custodian.
36. During cross-examination by Defendant No. 9(a), the witness
acknowledged that although he had received formal schooling, he had not
produced any documentary evidence to substantiate his identity or his
relationship with the plaintiff. He admitted that although he referred to a
Will executed by the plaintiff and to her study of Arabic, no such
documents were placed on record. He further agreed that there was no
documentary evidence showing that Sh. Allahadin resided in India after
1947 or that he had interacted with any government department after that
date. Additionally, he did not produce any document proving that the
plaintiff was Sh. Allahadin's daughter or that the plaintiff's marriage with
Mr. Sadiq had been conducted with the presence of Sh. Allahadin.
Nevertheless, the witness denied suggestions that the suit was instituted
to raise false claims over the property.
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37. The witness also denied the claim that Sh. Faqira, i.e., Defendant No. 9,
had been in continuous occupation of the suit property prior to 1947 and
cultivated the land independently until his death in 1972.
Cross-examination by the LRs of Defendant No. 7 mirrored the same
lines as that conducted by Defendant No. 9(a).
38. During cross-examination by Defendant No. 1, the witness stated that the
suit property was ancestral, belonging to Sh. Allahadin and his brothers,
and that it had been divided into three parts in Village Bakhtawarpur.
However, he admitted he was unaware whether Sh. Allahadin had paid
land revenue or taxes on the suit property. He also claimed that he could
produce witnesses to establish that Sh. Allahadin was buried in Gauspur,
Uttar Pradesh, but no such witnesses were summoned in the present case.
39. Finally, in cross-examination by Defendant No. 3, who adopted the
cross-examination conducted by other defendants, the witness deposed
that he had seen the khasra, khatoni, and fard of Village Bakhtawarpur
and had obtained copies, but he failed to place any of these documents on
record to support his assertions.
40. This testimony highlights that while Sh. Munfait Ali provided a narrative
of family and property relations, much of it remained uncorroborated by
documentary evidence or independent witnesses.
41. PW2, Sh. Abdul Hassain, who was summoned as a witness, deposed that
he is a professional translator and that he had translated the document
marked as Mark B, which is the scheme of partition relating to Village
Bakhtawarpur. The translated version was filed as Exhibit PW2/1
(Colly.).
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42. During cross-examination conducted by the counsels for the defendants,
PW2 admitted that the document he translated was not the original but a
"copy of a copy," which could affect its evidentiary weight. To support
his credentials, he filed a photocopy of his BA (Hons.) Part I
Examination 2018 certificate, indicating that he had studied Modern
Urdu and Hindi Prose Forms as part of his coursework; this document
was marked as Mark A/PW2.
43. Thus, while PW2's testimony establishes that the scheme of partition was
translated by a qualified individual, the fact that the source document
was not the original was highlighted as a limitation during
cross-examination.
44. PW3, Sh. Layak Ram, appeared as a summoned witness and deposed that
he was unable to trace or locate the records pertaining to File No. 1475,
which relates to the case file pursuant to which the order dated
07.05.1966 (Mark A) is stated to have been passed. His testimony,
therefore, indicated the absence of documentary evidence from the
official custodial files that could corroborate the claims or details related
to that particular file.
This lacuna was noted during the proceedings and had implications on
the evidentiary weight of the documents or claims associated with file no.
1475.
45. PW-4, Sh. Akhtar entered the witness box and tendered his evidence by
way of affidavit Ex. PW4/A. In his deposition, he stated that he
personally knew Sh. Allahadiya and his brothers, who were permanent
residents of Village Bakhtawarpur. He sought to support the testimony of
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PW-1 and, in that context, described the location and surroundings of the
neighbourhood of Sh. Allahadiya. He further attempted to corroborate the
incident in which Sh. Allahadiya was stated to have sustained injuries and
was taken to Village Gauspur.
46. During cross-examination by Counsel for defendant no. 9A, he admitted
that he had not placed any documentary evidence on record to
substantiate his claimed relation with Deen Mohammad as his brother, as
mentioned in his affidavit. He categorically denied the suggestion that he,
along with Munfait, his family, and Bande Hasan, were attempting to
defraud the court by giving false statements. Further, he denied claims
that he had no knowledge of Sh. Allahadiya or his family, that Allahadiya
had migrated to Pakistan during the riots, or that there was no marital
connection between families of Gauspur and Bakhtawarpur as alleged by
him.
47. However, he conceded that he had not submitted any photographs or
documents corroborating his testimony or showing that Musumat Jafri is
the daughter of Allahadiya. He was cross-examined by the counsel for the
LRs of defendant no. 7, counsel for defendant no. 1, and counsel for
defendant no. 3, and his admissions regarding the absence of supporting
documents remained consistent throughout the cross-examination.
48. This evidence highlighted that while PW4 could provide oral testimony
corroborating the PW-1's narrative, there was a notable lack of
documentary proof to substantiate key claims regarding familial relations
and ownership.
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49. Following the completion of PW4's examination, the plaintiff's
evidence (PE) was formally closed, as recorded on the statement of the
Counsel for the plaintiff. The Court thereafter directed that the matter
proceed to the next stage, namely the Defendants' Evidence, and
scheduled the case for hearing in which the defendants were to present
their witnesses, documents, and any other evidence in support of their
respective contentions. This marked the conclusion of the plaintiff's
opportunity to lead evidence and shifted the focus to the defendants' case
for adjudication.
DEFENDANTS' EVIDENCE
50. In the defendants' evidence stage, the legal representatives (LRs) of
defendant no. 7B and defendant no. 9A were examined as witnesses.
51. DW-1, Sh. Shivender Singh, LR of the deceased defendant no. 7B, Sh.
Ratan Singh, filed his evidence through affidavit Ex. DW1/A. In his chief
examination, he asserted that the plaintiff, Musumat Jafri, lacks locus
standi to file the present suit. He deposed that, according to personal
knowledge and ancestral accounts, Sh. Allahadiya migrated to Pakistan in
1947-48 with his family and never returned to India. He further stated
that defendant no. 7 has been in continuous possession of Khasra Nos.
8/2/1 and 8/2/2, dating back to time immemorial, and therefore, by virtue
of adverse possession, his family has acquired ownership rights over the
said land.
52. During cross-examination by the plaintiff's counsel, DW-1 admitted that
he had not seen any official record confirming Sh. Allahadiya's migration
to Pakistan. He also acknowledged that he was unaware of the detailed
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partition of khasra numbers in 1947 and of any consolidation proceedings
in 1951-52. DW-1 conceded that he had not submitted any documentary
evidence to substantiate the possession of the suit property by his
ancestors and denied that his family was never in possession of the land.
53. This testimony thus forms the cornerstone of the defendants' adverse
possession claim while simultaneously leaving critical documentary gaps
unaddressed.
54. DW-2, Sh. Ram Kumar Chauhan, representing defendant no. 9A, was
examined during the defendants' evidence stage. In his affidavit evidence,
he deposed that Musumat Jafri was not the daughter of Sh. Allahadiya,
who, according to him, had migrated to Pakistan during the 1947 riots.
This information, he stated, was communicated to him by his father, Sh.
Fakira. The witness further asserted that his ancestors had been in
continuous possession of the suit property even prior to 1947.
55. During cross-examination by the plaintiff's counsel, DW-2 admitted that
he could not specify the total area held by Allahadiya and his brothers in
1947. While he acknowledged that the khasra numbers were changed
during the 1951-52 consolidation proceedings (chakbandi), he was
unable to provide the old or new khasra numbers. He also denied the
suggestion that he or his forefathers had never been in possession of the
suit property, affirming continuous occupancy.
56. Following the completion of DW-2's evidence, the defendant's evidence
stage was formally closed, and the matter was fixed for final arguments.
This concluded the evidence stage of the proceedings, leaving the parties
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to address legal submissions and interpretation of evidence in the final
stage.
ARGUMENTS ADVANCED
57. I have heard the Arguments and perused the record. I have also gone
through the Judgments cited by the Ld. Counsels during the course of
their arguments.
58. It is argued by Ld. Counsel for the plaintiff that the original plaintiff,
Musammat Jafri, was the sole surviving legal heir of Sh. Allahadiya and
had instituted the present suit seeking a decree of declaration and
possession in respect of the suit property. It is submitted that the plaintiff
has claimed that her father, Sh. Allahadiya, was the owner of one-fourth
share in the agricultural land falling in Khatoni 'A', as mentioned in para
12 of this Judgment.
59. It is further argued that Sh. Allahadiya, was a non-evacuee. However, by
an order passed by the competent authority, Sh. K.L. Wasan, the suit
property came to vest in the custody of the Custodian, i.e., defendant
no.1, till the time the title of the non-evacuee claimant was settled by the
appropriate forum. It is also submitted that the competent officer, Sh. J.D.
Jain, in Case No. 2573 and 1473 titled "Rural Additional Custodian vs.
Ram Narayan & Ors.", vide order dated 29.11.1962, held that though Sh.
Allahadiya, had already expired by that time, he was the owner of
one-fourth share in the property, which is the suit property involved in the
present proceedings. Therefore, it is contended that the plaintiff, Mst.
Jafri, being the sole surviving legal heir of Sh. Allahadiya,, is entitled to
succeed to the said share of her father.
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60. It is further argued that the star witness of the plaintiff is PW1, Sh.
Munfait Ali, who is the son of the plaintiff. PW1 has affirmed in his
testimony that he is the son of the plaintiff and that the plaintiff was the
only surviving daughter and legal heir of Sh. Allahadiya. It is submitted
that PW1 narrated several incidents and circumstances which, according
to the plaintiff, substantially establish that PW1 is the son of the plaintiff
and that the plaintiff herself was the daughter of Sh. Allahadiya.
61. Ld. Counsel for the plaintiff has further submitted that PW1 also
mentioned the names of various neighbouring residents who were
residing in the vicinity of Sh. Allahadiya in Village Bakhtawarpur. PW1
also gave details regarding the existence of built-up and vacant structures
near the house of Sh. Allahadiya, which, according to the plaintiff, lends
support to the case set up by her. It is argued that the testimony of PW1
has also been corroborated by the testimony of PW4. Accordingly, it is
contended that the combined testimonies of PW1 and PW4 are sufficient
to establish the relationship between Sh. Allahadiya and the plaintiff, as
well as the relationship between the Plaintiff and PW1.
62. It is also argued that the defendants have failed to effectively
cross-examine PW1 and PW4 so as to discredit their testimonies. It is
submitted that since both the witnesses were able to depose crucial facts
relating to the past history of Village Bakhtawarpur as well as their family
history, the same is sufficient to establish the relationship between the
parties.
63. With respect to the issue of valuation of the suit, it is argued that the
present suit is well within the pecuniary jurisdiction of this Court, as the
same is governed by Section 7(v)(a) of the Court Fees Act and there is
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no requirement to pay ad valorem court fee on the market value of the
property. It is submitted that if the aforesaid provision is read along with
Annexure I of the Delhi Land Reforms Rules, 1954, Village
Bakhtawarpur falls within the category of Khadar village, where the land
revenue is fixed at 6 annas for the Kharif crop and 10 annas for the Rabi
crop and as per Section 7(v)(a) of the Court Fees Act, the court fee
payable is ten times the revenue so assessed, whereas the plaintiff has
paid court fees exceeding such value. Therefore, according to the
plaintiff, the suit has been properly valued for the purposes of court fees
and jurisdiction.Reliance has been placed upon: Surjit Kumar vs. Jai
Paul & Ors., AIR 1975 P&H 91; Natabar Parichha & Ors. vs. Nimai
Charan Misra & Ors., AIR 1952 Ori 75; and Balu Deochand Kulmi &
Anr. vs. Funibai Amichand Kulmi, AIR 1972 MP 22.
64. It is further argued on behalf of the plaintiff that, as per the testimony of
PW1, all the relevant rituals and ceremonies of Mst. Jafri were performed
by Sh. Allahadiya. It is further submitted that ceremonies relating to
marriage of PW1 were also conducted by Sh. Allahadiya, being his
grandfather. According to the plaintiff, these circumstances lend support
to the claim regarding the relationship between the parties.
65. It is further argued that both the witnesses have specifically mentioned
the name of the doctor who had examined the father of the plaintiff at the
relevant point of time. According to the plaintiff, this detail lends
credibility to their testimony and demonstrates their personal knowledge
of the family and the events in question.
66. Per contra, it is argued by Ld. Counsel for Defendant No. 1 that the
present suit was instituted in the late 1960s by one Musammat Jafri,
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claiming herself to be the daughter of Sh. Allahdiya and asserting that he
was a non-evacuee. It is submitted that an order had earlier been passed
by Sh. K. L. Wasan, the then Competent Officer, Delhi, wherein it was
observed that both the Government as well as Musammat Jafri were at
liberty to approach the appropriate forum for adjudication of their
respective claims.
67. It is contended that the PW-1 has failed to produce any documentary
evidence to establish either the identity of Sh. Allahdiya or Plaintiff, or
the alleged relationship between them. The witness, during his
cross-examination, deposed that Sh. Allahdiya had expired in the year
1954, whereas the suit itself was filed much later in the late 1960s.
Despite the passage of several decades and the completion of the trial, no
documentary evidence has been placed on record to substantiate the
identity of the parties or the relationship claimed by the plaintiff.
68. Ld. Counsel submits that only two witnesses, namely Munfait Ali (PW-1)
and Akhtar (PW-4), have been examined to establish the alleged
relationship between Musammat Jafri (Plaintiff) and Sh. Allahdiya.
Munfait Ali, who claims to be the son of Musammat Jafri, has also failed
to produce any documentary proof regarding his own identity or his
relationship with her. Thus, the entire case of the plaintiff rests solely
upon oral testimony. It is argued that the burden of proving such a
relationship lies squarely upon the plaintiff and cannot be discharged
merely through oral assertions in the absence of supporting documentary
evidence. Reliance has been placed upon Shri Pratap Singh vs. Shiv
Ram, AIR 2020 SC 1382.
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69. It is further argued that the identity of Sh. Allahdiya, Musammat Jafri,
and even the witnesses Munfait Ali and Akhtar has been seriously
disputed by the defendants. The mere substitution of Munfait Ali as the
legal representative of Musammat Jafri does not conclusively establish
that he is her lawful heir or entitled to the suit property. It is submitted
that the determination made under Order XXII Rule 5 of the Code of
Civil Procedure is only summary in nature and does not finally decide
questions of succession or title. In this regard, reliance is placed upon
Than Singh vs. Majboot Singh, 2010 SCC OnLine MP 170.
70. It is also contended that the reliance placed by the plaintiff on Sections
32(5) and 50 of the Indian Evidence Act, 1872 (Hereinafter referred to
as "IEA") is misplaced. According to the defendant, Section 32(5) is not
applicable to the facts of the present case, and as far as Section 50 is
concerned, oral evidence regarding the relationship must satisfy a high
standard of credibility. In the present case, the testimonies of Munfait Ali
and Akhtar suffer from inconsistencies regarding their age, family details,
and knowledge of the contents of the evidence affidavit, thereby casting
doubt upon their credibility.
71. Ld. Counsel further submits that Munfait Ali is an interested witness,
being a direct beneficiary of the suit property, and therefore his testimony
cannot be relied upon without independent corroboration. Similarly,
Akhtar, who belongs to the same village and community as Munfait Ali,
cannot be considered an independent witness. It is further argued that
none of the incidents referred to by the witnesses have been corroborated
by any independent evidence. In this regard, it is also pointed out that
PW1, during his cross-examination, admitted that he was not even
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aware of the contents of his evidence affidavit Ex. PW1/A, which casts
serious doubt upon the reliability of his testimony.
72. It is also argued that the plaintiff has failed to produce any documentary
material such as a family register or Nikahnama to substantiate the
alleged relationship with Sh. Allahdiya or to establish her marital status.
The death certificate of PW1, which forms part of the judicial record,
merely records the name of the mother as "Jafri", which provides no
assistance to the Court in determining the identity or relationship of the
parties, particularly when no other documentary record has been
produced to substantiate the same.
73. Lastly, it is argued that the present suit is not maintainable for want of
pecuniary jurisdiction and for non-payment of proper court fees.
According to the defendant, the suit is governed by Section 7(v)(d) of the
Court Fees Act, 1870 and therefore ought to have been valued on the
market value of the suit property. The plaintiff has claimed a one-fourth
share in more than 749 bighas of land which, even at the time of
institution of the suit, would have been valued in several lakhs of rupees.
It is submitted that the pecuniary jurisdiction of the Sub-Judge at the
relevant time was approximately ₹20,000 and that of the District Judge
was ₹50,000. Therefore, the Court lacked pecuniary jurisdiction to
entertain the suit and the plaintiff was also liable to pay ad valorem court
fees on the market value of the suit property. The contention of the
plaintiff that the suit is governed by Section 7(v)(a) of the Court Fees Act
is stated to be untenable as neither the Collector's register nor any receipt
evidencing payment of land revenue has been placed on record. Reliance
has been placed upon Surjeet Kumar vs. Jai Paul, AIR 1975 P&H 91
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and Balu Deochand Kulmi & Anr. vs. Fundibai Amichand Kulmi, AIR
1972 MP 22.
ISSUE WISE ANALYSIS
ISSUE NO. 1
WHETHER THE PLAINTIFF IS THE DAUGHTER OF SH.
ALLAHADIYA AND THE ONLY LEGAL HEIR OF SH. ALLAHADIYA?
74. The burden to prove this issue squarely lies upon the plaintiff. The entire
claim of the plaintiff in the present suit is founded upon the assertion that
Musamat Jafri was the daughter and sole legal heir of Sh. Allahadiya and
that she consequently inherited his alleged share in the suit property.
75. In order to establish the said relationship, the plaintiff has relied primarily
upon the testimony of PW1 Sh. Munfait Ali and PW4 Sh. Akhtar. PW1
has deposed that Musamat Jafri was the daughter of Sh. Allahadin/Sh.
Allahadiya and that he himself is the son of the plaintiff. However, during
cross-examination, PW1 admitted that he had not produced any
documentary evidence to prove either his own identity or his relationship
with the plaintiff. He further admitted that no document had been placed
on record to establish that Musamat Jafri was the daughter of Sh.
Allahadin or that Sh. Allahadin/Sh. Allahadiya had continued to reside in
India after the year 1947.
76. Similarly, PW4 Sh. Akhtar sought to corroborate the version of the
plaintiff by stating that he knew Sh. Allahadin/Sh. Allahadiya and his
family. However, he also admitted during cross-examination that he had
not produced any documentary evidence to establish the relationship
between the plaintiff and Sh. Allahadin/Sh. Allahadiya.
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77. Thus, the entire case of the plaintiff on this aspect rests only upon oral
testimony. No documentary evidence such as birth records, revenue
records, family registers, marriage documents, death certificates, or any
other official record has been produced to substantiate the alleged
relationship.
78. At this stage it is relevant to quote the Judgment of Hon'ble Supreme
Court titled as Dalgobinda Paricha v. Nimai Charan Misra, AIR 1959
SC 914 wherein the scope of Section 50 of the IEA was elaborately
discussed by the Court. The Court held that opinion as to relationship is
relevant only when expressed by conduct of a person having special
means of knowledge, and such conduct must be proved in accordance
with Section 60 of the IEA, i.e., by direct evidence of a person who has
personally perceived it. It was further clarified that mere hearsay or
general reputation, without proof of conduct, is not sufficient to establish
a relationship.
79. At this stage, it is apposite to refer to Sections 50 and 60 of the IEA
which govern the relevancy of opinion as to relationship and the manner
of proof of oral evidence.
80. Section 50 provides that where the Court is required to form an opinion
as to the relationship between two persons, the opinion, as expressed by
the conduct of a person who, being a member of the family or otherwise,
has special means of knowledge on the subject, is a relevant fact, subject
to the statutory limitation that such opinion alone is not sufficient to
prove a marriage in the specified proceedings. It reads as under:-
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Section 50 - Opinion on relationship, when
relevant
When the Court has to form an opinion as to the
relationship of one person to another, the opinion,
expressed by conduct, as to the existence of such
relationship, of any person who, as a member of
the family or otherwise, has special means of
knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient
to prove a marriage in proceedings under the
Indian Divorce Act, 1869 (4 of 1869), or in
prosecutions under sections 494, 495, 497 or 498
of the Indian Penal Code (45 of 1860).
81. Correspondingly, Section 60 mandates that oral evidence must, in all
cases, be direct. It stipulates that facts capable of being seen, heard, or
otherwise perceived must be proved by the testimony of a witness who
has directly perceived them, and that any opinion must be proved by the
person who holds such opinion. The provision thus excludes hearsay and
emphasizes that evidence must be based on personal knowledge, save for
the limited exception relating to expert opinions contained in recognized
treatises. It reads as under:-
Section 60 - Oral evidence must be direct
Oral evidence must, in all cases whatever, be
direct; that is to say--
* if it refers to a fact which could be seen, it must
be the evidence of a witness who says he saw it;
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*if it refers to a fact which could be heard, it must
be the evidence of a witness who says he heard it;
*if it refers to a fact which could be perceived by
any other sense or in any other manner, it must be
the evidence of a witness who says he perceived it
by that sense or in that manner;
*if it refers to an opinion or to the grounds on
which that opinion is held, it must be the evidence
of the person who holds that opinion on those
grounds:
Provided that the opinions of experts expressed in
any treatise commonly offered for sale, and the
grounds on which such opinions are held, may be
proved by the production of such treatises if the
author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called
as a witness without an amount of delay or
expense which the Court regards as unreasonable.
82. The decision in Dalgobinda Paricha (Supra) deals with how relationships
between persons can be proved in evidence. The judgment explains that
such a relationship can be inferred from conduct-based opinion of persons
having special knowledge, but not from mere hearsay. It further clarifies that
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this conduct must be proved through direct oral evidence. In relation to
Section 50 and Section 60 IEA, the relevant para is reproduced below:-
"6. ... On a plain reading of the section it is quite clear
that it deals with relevancy of a particular fact. It states in
effect that when the court has to form an opinion as to
the relationship of one person to another the opinion
expressed by conduct as to the existence of such
relationship of any person who has special means of
knowledge on the subject of that relationship is a relevant
fact. The two illustrations appended to the section clearly
bring out the true scope and effect of the section. It
appears to us that the essential requirements of the section
are -- (1) there must be a case where the court has to form
an opinion as to the relationship of one person to another;
(2) in such a case, the opinion expressed by conduct as to
the existence of such relationship is a relevant fact; (3) but
the person whose opinion expressed by conduct is relevant
must be a person who as a member of the family or
otherwise has special means of knowledge on the
particular subject of relationship; in other words, the
person must fulfil the condition laid down in the latter part
of the section. If the person fulfils that condition, then
what is relevant is his opinion expressed by conduct.
Opinion means something more than mere retailing of
gossip or of hearsay; it means judgment or belief, that is, a
belief or a conviction resulting from what one thinks on a
particular question. Now, the "belief" or "conviction" may
manifest itself in conduct or behaviour which indicates the
existence of the belief or opinion. What the section says is
that such conduct or outward behaviour as evidence of the
opinion held is relevant and may, therefore, be proved. We
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are of the view that the true scope and effect of Section 50
of the Evidence Act has been correctly and succinctly put
in the following observations made in Chandu Lal
Agarwala v. Khalilar Rahman [ILR (1942) 2 Cal 299,
309] :
"It is only 'opinion as expressed by conduct' which is
made relevant. This is how the conduct comes in. The
offered item of evidence is 'the conduct', but what is made
admissible in evidence is 'the opinion', the opinion as
expressed by such conduct. The offered item of evidence
thus only moves the court to an intermediate decision : its
immediate effect is only to move the court to see if this
conduct establishes any 'opinion' of the person, whose
conduct is in evidence, as to the relationship in question.
In order to enable the court to infer 'the opinion', the
conduct must be of a tenor which cannot well be supposed
to have been willed without the inner existence of the
'opinion'.
When the conduct is of such a tenor, the court only gets to
a relevant piece of evidence, namely, the opinion of a
person. It still remains for the court to weigh such
evidence and come to its own opinion as to the factum
probandum -- as to the relationship in question."
We also accept as correct the view that Section 50 does not
make evidence of mere general reputation (without
conduct) admissible as proof of relationship : Lakshmi
Reddi v. Venkata Reddi [AIR (1937) PC 201] .
7. It is necessary to state here that how the conduct or
external behaviour which expresses the opinion of a
person coming within the meaning of Section 50 is to be
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proved is not stated in the section. The section merely says
that such an opinion is a relevant fact on the subject of the
relationship of one person to another in a case where the
court has to form an opinion as to that relationship. Part II
of the Evidence Act is headed "On Proof". Chapter III
thereof contains a fascicule of sections relating to facts
which need not be proved. Then there is Chapter IV
dealing with oral evidence and in it occurs Section 60
which says inter alia:
.
.
.
If we remember that the offered item of evidence under
Section 50 is conduct in the sense explained above, then
there is no difficulty in holding that such conduct or
outward behaviour must be proved in the manner laid
down in Section 60; if the conduct relates to something
which can be seen, it must be proved by the person who
saw it; if it is something which can be heard, then it must
be proved by the person who heard it; and so on. The
conduct must be of the person who fulfils the essential
conditions of Section 50, and it must be proved in the
manner laid down in the provisions relating to proof. It
appears to us that that portion of Section 60 which
provides that the person who holds an opinion must be
called to prove his opinion does not necessarily delimit the
scope of Section 50 in the sense that opinion expressed by
conduct must be proved only by the person whose conduct
expresses the opinion. Conduct, as an external perceptible
fact, may be proved either by the testimony of the person
himself whose opinion is evidence under Section 50 or by
some other person acquainted with the fact which express
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such opinion, and as the testimony must relate to external
facts which constitute conduct and is given by persons
personally acquainted with such facts, the testimony is in
each case direct within the meaning of Section 60. This, in
our opinion, is the true interrelation between Section 50
and Section 60 of the Evidence Act. In Queen Empress v.
Subbarayan [(1885) ILR 9 Mad 9, 11] Hutchins, J. said:
"That proof of the opinion, as expressed by conduct, may
be given, seems to imply that the person himself is not to
be called to state his own opinion, but that, when he is
dead or cannot be called, his conduct may be proved by
others. The section appears to us to afford an exceptional
way of proving a relationship, but by no means to prevent
any person from stating a fact of which he or she has
special means of knowledge."
While we agree that Section 50 affords an exceptional way
of proving a relationship and by no means prevents any
person from stating a fact of which he or she has special
means of knowledge, we do not agree with Hutchins, J.
when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. We do not think that Section 50 puts any such limitation."
83. Let us now apply the tests indicated above to the testimony of the two witnesses, PW-1 and PW-4. The plaintiff's entire case hinges on proving that she is the daughter and sole legal heir of Sh. Allahadiya. At this stage, the Court is required to assess whether the plaintiff has discharged Digitally signed by Page No. 45/58 MILAN MILAN GOEL GOEL Date:
2026.05.04 16:45:48 +0530 CS SCJ 653/2022 Musumat Jafri v. Custodian of Evacuee Properties & Ors the burden of proving that she is the daughter and sole legal heir of Sh. Allahadiya, which forms the very foundation of the present suit. The determination of such a relationship is not a matter of mere assertion but must rest on legally admissible and credible evidence. The law recognises that such a relationship may, in appropriate cases, be inferred from conduct of persons having special knowledge, but such conduct must be clearly established through direct and reliable evidence. This necessarily calls for a strict scrutiny of the evidence led by the plaintiff.
84. In the present case, the burden squarely lies upon the plaintiff, and the evidence must demonstrate not merely a claim of relationship but conduct indicative of recognition of such relationship within the family or community.
85. The plaintiff has primarily relied upon the testimonies of PW1 and PW4.
PW1, who claims to be the son of the plaintiff, has deposed that Musammat Jafri was the only daughter of Sh. Allahadiya and he has further stated that his maternal grandfather performed and supervised his marriage ceremonies. He has also attempted to describe the house of Sh. Allahadiya in Village Bakhtawarpur by referring to neighbouring landmarks and has stated that he used to visit him. Further, PW1 has deposed about the alleged injury to Sh. Allahadiya and his subsequent death at Village Gauspur.
86. However, these statements, when carefully examined, do not amount to proof of conduct establishing the relationship. The reference to performance of marriage ceremonies, though relevant in principle, remains a bare assertion and is not corroborated by any independent witness, documentary record, or even specific details capable of Digitally signed by Page No. 46/58 MILAN MILAN GOEL GOEL Date:
2026.05.04 16:45:49 +0530 CS SCJ 653/2022 Musumat Jafri v. Custodian of Evacuee Properties & Ors verification. Similarly, the description of the location of the house and surrounding landmarks only indicates familiarity with the locality, but does not demonstrate recognition of the plaintiff as the daughter of Sh. Allahadiya. The narration regarding the injury and death of Sh. Allahadiya is also not supported by any medical record, witness, or other independent evidence.
87. More importantly, PW1, during cross-examination, admitted that he has not produced any documentary evidence to establish either his own identity or his relationship with the plaintiff or with Sh. Allahadiya. He further admitted that no document has been placed on record to show that Sh. Allahadiya continued to reside in India after 1947. He also conceded that though he claimed he could produce witnesses to establish the burial of Sh. Allahadiya, no such witnesses were examined. Additionally, despite stating that he had seen revenue records such as khasra and khatoni, he failed to place the same on record. These admissions materially weaken the evidentiary value of his testimony and render his assertions insufficient to establish the relationship.
88. The testimony of PW4 also does not materially advance the plaintiff's case. PW4 has deposed that he knew Sh. Allahadiya and his family and therefore sought to support PW1 by describing the neighbourhood of Sh. Allahadiya and referring to the incident of his injury and removal to Village Gauspur. However, this again only reflects general familiarity and not conduct demonstrating recognition of the alleged relationship. During cross-examination, PW4 admitted that he has not placed any documentary evidence on record to substantiate his claims and further conceded that he has not produced any material to show that Musammat Jafri was the Digitally signed by Page No. 47/58 MILAN MILAN GOEL GOEL Date:
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89. It is also significant that both PW1 and PW4 have failed to produce any independent witness from either Village Bakhtawarpur or Village Gauspur who could depose about the relationship in question or about the conduct of the parties indicating such relationship. In cases where relationships are sought to be established through conduct, evidence of community perception or family recognition assumes importance. The absence of such evidence further weakens the plaintiff's case.
90. The complete lack of documentary evidence also assumes considerable significance. No birth record, family register, marriage document, revenue entry, or any other official record has been produced to substantiate the alleged relationship. While documentary evidence is not always mandatory, its absence, particularly where it could reasonably be expected, creates a serious lacuna which the oral testimony in the present case fails to fill.
91. In the present case, PW1 is an interested witness being the alleged legal representative of the plaintiff and a person who stands to benefit from the outcome of the suit. The testimony of PW4 also does not inspire confidence as it is unsupported by any independent material. In the absence of such corroboration, and in light of the deficiencies noted above, it would be unsafe to rely solely upon his deposition.It is well settled that the burden to prove such a relationship lies upon the party asserting it. Mere oral assertions, particularly when made by interested witnesses, cannot be accepted in the absence of reliable corroboration.
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The Hon'ble Supreme Court in Shri Pratap Singh vs. Shiv Ram, AIR 2020 SC 1382 has observed that while oral evidence may sometimes be unreliable, documentary evidence carries greater probative value.
92. Taken cumulatively, the evidence led by the plaintiff does not establish any clear, consistent, and provable conduct indicative of the alleged relationship. The testimonies of PW1 and PW4 remain largely in the nature of unsubstantiated assertions, lacking the necessary corroboration and evidentiary support.
93. Another critical aspect is the failure to establish identity, which is a prerequisite for proving relationships. If the identity of the witnesses themselves is not conclusively established, the question of proving a relationship by their testimony becomes untenable. The absence of any documentary proof regarding the identity of the PW1 as well as PW4 creates a foundational weakness in the case that cannot be cured by oral assertions alone.
94. Further, the reliance placed by the plaintiff on ceremonial acts, even if accepted, does not meet the standard mentioned in the law unless such acts are proved as conduct through independent and credible evidence. The Court in above mentioned judgment emphasized that conduct must be of a nature that unmistakably points to the existence of the relationship. In the present case, the alleged ceremonies are neither proved nor corroborated and therefore cannot be relied upon.
95. The absence of any statement under circumstances contemplated by Section 32(5) of the IEA, though not central, further deprives the plaintiff of an additional evidentiary support which could have strengthened her Digitally signed by Page No. 49/58 MILAN MILAN GOEL GOEL Date:
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96. The cumulative effect of these deficiencies is that the evidence led by the plaintiff does not satisfy the test laid down in Dalgobinda Paricha (Supra). The testimonies of PW1 and PW4 do not establish opinion expressed by conduct, nor do they meet the requirement of direct evidence under Section 60. Instead, they amount to uncorroborated assertions, which the Supreme Court has expressly cautioned against relying upon.
97. Further, In view of the absence of documentary proof and the inconsistencies appearing in the oral testimony and in terms of the aforesaid discussion, this Court is of the considered opinion that the plaintiff has failed to discharge the burden of proving that Musamat Jafri was the daughter and sole legal heir of Sh. Allahadiya.
98. Accordingly, Issue No. 1 is decided against the plaintiff and in favour of the defendants.
ISSUE NO. 2 WHETHER SH. ALLAHADIYA DIED ISSUELESS AND HAS NOT LEFT ANY LEGAL HEIR TO INHERIT HIS ESTATE AND THE LAND IN SUIT VESTED IN DEFENDANT NO. 2 ON ACCOUNT OF ESCHEAT?
99. The burden to prove this issue lies upon the defendants who have taken the plea of escheat.
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100. Defendant Nos. 2, 3 and 5 have contended that in the absence of any
lawful heir of Sh. Allahadiya, the property stood vested in the State by virtue of the doctrine of escheat. However, no specific documentary evidence has been produced by the defendants to conclusively establish that the estate of Sh. Allahadiya stood vested in the State on account of escheat.
101. At the same time, as already discussed while deciding Issue No. 1, the plaintiff has also failed to establish that she is the legal heir of Sh. Allahadiya. In such circumstances, although the plaintiff has failed to prove her succession, the defendants have equally failed to conclusively prove that the property vested in the State by operation of escheat.
102. Accordingly, Issue No. 2 is decided against the defendants.
ISSUE NO. 3WHETHER LEGAL AND VALID NOTICE UNDER SECTION 80 CPC HAS BEEN SERVED UPON THE DEFENDANTS?
103. The plaintiff has placed on record postal receipts Ex. PW1/3 and Ex.
PW1/4 along with the office copy of the legal notice dated 13.06.1967 exhibited as Ex. PW1/5, whereas the defendants have not produced any material to show that the said notice was not issued or that it was not served.
104. In the absence of any rebuttal evidence, this Court is inclined to accept that a notice under Section 80 CPC was issued prior to the institution of the suit.
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105. Accordingly, Issue No. 3 is decided in favour of the plaintiff.
ISSUE NO. 4
WHETHER THE LAND IN SUIT WAS VESTED IN GAON SABHA UNDER THE DELHI LAND REFORMS ACT, 1954 AND, IF SO, WHETHER SUCH LAND STANDS VESTED IN THE GAON SABHA OF VILLAGE BAKHTAWARPUR?
106. The defendants have taken the plea that the land in question was waste land at the time of the commencement of the Delhi Land Reforms Act and therefore vested in the Gaon Sabha. However, no specific revenue record or order of vesting has been placed on record to establish that the suit land stood vested in the Gaon Sabha.
107. In the absence of documentary proof demonstrating vesting under the provisions of the Delhi Land Reforms Act, the said plea cannot be accepted.
108. Accordingly, Issue No. 4 is decided against the defendants.
ISSUE NO. 5 WHETHER DEFENDANTS NO. 6 AND 7 HAVE ACQUIRED TITLE BY ADVERSE POSSESSION?
109. The burden to prove adverse possession lies upon the defendants asserting such a claim. In order to establish adverse possession, the Digitally signed by Page No. 52/58 MILAN MILAN GOEL GOEL Date:
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110. In the present case, the defendants have primarily relied upon oral testimony to assert long possession. However, no documentary evidence such as revenue records, khasra girdawari entries or other official records demonstrating hostile possession has been produced.
111. In the absence of cogent evidence establishing the necessary ingredients of adverse possession, the said plea cannot be accepted.
112. Accordingly, Issue No. 5 is decided against the defendants.
ISSUE NO. 6WHETHER DEFENDANT NO. 9 WAS A NON-OCCUPANCY TENANT IN THE SUIT LAND PRIOR TO 1947 AND HAS BEEN IN CULTIVATORY POSSESSION?
113. The defendants have asserted that defendant no.9 was a non-occupancy tenant in the land even prior to the year 1947. However, no documentary evidence such as tenancy records or revenue entries has been produced to substantiate this claim.
114. Accordingly, Issue No. 6 is decided against the defendants.
ISSUE NO. 7 WHETHER THE CIVIL COURT HAS JURISDICTION TO TRY THE SUIT?
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115. The defendants have raised objections regarding the jurisdiction of the
civil court. The present suit primarily seeks declaration of title and recovery of possession. Such reliefs ordinarily fall within the jurisdiction of the civil court unless specifically barred by statute.
116. No statutory bar has been demonstrated which would exclude the jurisdiction of this Court in respect of the reliefs claimed.
117. Accordingly, Issue No. 7 is decided in favour of the plaintiff.
ISSUES NO. 8 TO 11 WHETHER DEFENDANT NO. 12 IS THE ALLOTTEE OF KHASRA NO.
8/3 OF THE SUIT LAND? IF SO, WHETHER HE HAS BEEN IN CULTIVATORY POSSESSION OF THE SUIT LAND SINCE 1953-54? IF SO, TO WHAT EFFECT? WHETHER DEFENDANT NO. 13 IS THE ALLOTTEE OF KHASRA NOS. 8/4 AND 8/5 OF THE SUIT LAND AND HAS BEEN IN CULTIVATORY POSSESSION OF THE SAME SINCE 1953-54? IF SO, TO WHAT EFFECT? WHETHER DEFENDANTS NO. 14 AND 18 TO 22 ARE THE LAWFUL PURCHASERS OF PART OF THE SUIT LAND ALLEGED TO HAVE BEEN PURCHASED BY THEM UNDER A PUBLIC AUCTION HELD BY THE COURT IN THE YEAR 1949 AND ARE IN POSSESSION OF THE LAND SINCE THEN? IF SO, TO WHAT EFFECT?
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WHETHER DEFENDANTS NO. 15, 16, AND 17 ARE LAWFUL PURCHASERS OF LAND OUT OF KHASRA NO. 120/35 FROM SH. CHANDER BHAN, S/O SH. HARI SINGH, WHO IS ALLEGED TO HAVE PURCHASED THE SAME IN A COURT AUCTION?
118. The defendants asserting such claims were required to establish their rights through documentary evidence such as allotment orders, auction records, or sale deeds. However, the evidence produced in this regard is insufficient to conclusively establish the claims as pleaded.
119. Accordingly, Issues No. 8 to 11 are decided against the defendants.
ISSUES NO. 12, 13, 14, 15, AND 17 WHETHER DEFENDANTS NO. 2 AND 5 CANNOT BE SUED IN THE PRESENT FORM?
WHETHER THE PLAINT IS VAGUE AND IS LIABLE TO BE REJECTED IN VIEW OF PARAS NO. 1 TO 11 OF THE WRITTEN STATEMENT OF THE DEFENDANTS?
WHETHER THE SUIT IS BAD FOR MISJOINDER AND NON-JOINDER OF PARTIES AND CAUSES OF ACTION?
WHETHER THE SUIT OF THE PLAINTIFF AGAINST THE DEFENDANTS IS NOT MAINTAINABLE?
WHETHER THE PLAINT IS LIABLE TO BE AMENDED IN VIEW OF THE WRITTEN STATEMENT OF DEFENDANT NO. 9?
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120. The defendants have raised objections regarding maintainability,
mis-joinder and vagueness of the plaint. However, the defendants have failed to produce sufficient material to demonstrate that the suit suffers from such defects as would warrant rejection of the plaint or dismissal of the suit at the threshold.
121. Accordingly, these issues are decided against the defendants.
ISSUE NO. 16WHETHER THE SUIT IS NOT PROPERLY VALUED FOR THE PURPOSES OF COURT FEES AND JURISDICTION?
122. The onus to prove the present issue was upon the defendants, who have challenged the valuation of the suit on the ground that it has been deliberately understated for the purposes of court fees and pecuniary jurisdiction.
123. The plaintiff, on the other hand, has contended that the suit is governed by Section 7(v)(a) of the Court Fees Act, 1870, and that the valuation is liable to be determined on the basis of land revenue applicable to agricultural land. It has further been urged that the court fee paid exceeds the prescribed multiple of such revenue and is therefore adequate.
124. Upon a careful consideration of the rival submissions, pleadings, and material on record, it emerges that the present suit is not one for mere possession of agricultural land simpliciter. Rather, it is a composite suit wherein the plaintiff seeks a declaration of title over a substantial extent of land, coupled with consequential relief of possession against multiple Digitally signed by Page No. 56/58 MILAN MILAN GOEL GOEL Date:
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125. However, it is equally significant that the defendants, upon whom the burden of proof lay, have failed to substantiate their objection with any cogent evidence. No material has been placed on record to indicate the prevailing market value of the suit property at the relevant time. The defendants have not produced any sale instances, valuation reports, or revenue assessments to support their plea of undervaluation. Further, there has been no meaningful cross-examination of the plaintiff's witnesses on the aspect of valuation so as to elicit any admission or contradiction. The objection, therefore, remains a bare assertion unsupported by evidence.
126. It is settled that a plea of improper valuation cannot be sustained merely on the basis of averments in the written statement and must be established through reliable and cogent material. In the absence of such evidence, the Court cannot presume undervaluation.
127. In view of the aforesaid, this Court is of the considered opinion that although the nature of the suit suggests that valuation on a revenue basis may not be entirely appropriate, the defendants have failed to discharge Digitally signed by Page No. 57/58 MILAN MILAN GOEL GOEL Date:
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128. Accordingly, the issue is decided against the defendants and in favour of the plaintiff, holding that the objection regarding improper valuation has not been proved.
RELIEF
129. The most crucial issue in the present suit is Issue No. 1 relating to the relationship of the plaintiff with Sh. Allahadiya. Since the plaintiff has failed to establish that she was the daughter and legal heir of Sh. Allahadiya, the very foundation of the plaintiff's claim collapses.
130. It is a settled principle of civil law that the plaintiff must succeed on the strength of her own case and not on the weakness of the defence. Since the plaintiff has failed to establish her title or succession to the estate of Sh. Allahadiya, she cannot claim declaration of ownership or recovery of possession in respect of the suit property.
131. Accordingly, the present suit stands dismissed.
132. No Order as to the costs.
133. File be consigned to record room.
(This judgment contains 58 pages and each page has been signed by me.) Announced in the open court (MILAN GOEL) on 04.05.2026 Civil Judge-08 (Central)/Delhi Digitally signed by Page No. 58/58 MILAN MILAN GOEL GOEL Date:
2026.05.04 16:45:50 +0530